Critical Perspectives on Law, Gender & Sexuality

New Policy on Transgender Prisoners: Progressive but can Prisons Keep Pace?

Robyn Emerton is a PhD candidate at Keele University. She is researching legal and policy development relating to transgender prisoners in England and Wales and is a qualified solicitor. Mia Harris is a PhD candidate at the University of Oxford and researches the experiences of lesbian, gay, bisexual and transgender people in prison.

This time last year, the cases of Tara Hudson, Vikki Thompson and Joanne Latham sparked public concern regarding the treatment of transgender prisoners. On Wednesday, 9 November 2016, the government published its revised policy, and its first official statistics, on transgender offenders. This welcome development was unfortunately eclipsed by media coverage of the US election results. Indeed, cynics might say that this was the government’s intention, given the sensationalist headlines that accompanied the announcement of the original policy five years ago. This is a shame, as there is much to be celebrated in its revised policy, as well as in the public’s increased understanding of the plight of transgender prisoners over the last year.

According to the initial data, 70 prisoners identify as transgender, and over 1 in 4 prisons house a transgender inmate. The actual number of transgender prisoners is likely to be significantly higher since many inmates feel unable to tell staff about their gender.

The revised policy will be fully implemented by 1 January 2017. It is in part an effort to keep pace with social change (for example replacing the out-of-date term “transsexual”, and recognising non-binary and fluid genders) and in part an attempt to overcome the difficulties prisons experienced with implementing the original policy, and the problems transgender prisoners faced in realising their rights. The review has clearly benefitted from the input of a wide range of stakeholders, including transgender prisoners, and from the independent oversight of Peter Dawson of the Prison Reform Trust and Jay Stewart of Gendered Intelligence. The overall result is progressive, and, we believe, internationally ground-breaking in terms of its recognition of gender fluid and gender non-binary prisoners.

During the past five years we have seen increasing public acceptance of the fact that gender can be fluid and non-binary. Previous prison rules (PSI 2011/7) allowed transgender inmates to access gender-affirming clothing and toiletries, but only if they proposed to live “permanently” in “the gender opposite to the one assigned at birth”. The new rules will enable prisoners who identify as gender fluid or gender non-binary to express their gender too. It is clear from the number of complaints to the Prisons and Probation Ombudsman and voluntary sector organisations, such as Bent Bars and Press for Change, that prisons routinely struggled to implement the original policy on transgender inmates – often failing to provide transgender prisoners with the items they required to express their gender. Last year, for example, HMP Full Sutton refused a transgender prisoner a wig, tights and women’s clothing on various security grounds. Although the court ultimately upheld the prison governor’s decision, the judge expressed fears that the policy would “become a pious list of worthy hopes with no practical application”. Under the revised policy, prison governors are given the same wide discretion to refuse access to gender-affirming items due to risk, security and operational factors. Although the decision must be ‘proportionate’, it is highly likely in the current climate that security concerns will continue to trump prisoners’ rights to gender expression.

Whilst a wider group of gender minority prisoners will now be able to express their gender (subject to security exemptions), they will continue to be housed in either a men’s or women’s prison, based on their legal gender. When it comes to transgender men and transgender women, the revised policy offers significant improvements to the procedures for making prison allocation decisions, both at the time of sentencing, and for those who transition while in prison. There is an emphasis on early decision-making, and ensuring that transgender offenders are kept fully informed of the process, and have the opportunity to present their views to the new “transgender case boards”. A key improvement for those facing imprisonment, is that a prison allocation decision must be made before a person is sentenced, or at least within three days of arriving in custody. This will remove much of the uncertainty faced by transgender prisoners, such as Tara Hudson, who was sent to a men’s prison, and only moved after a week due to the pressure of a public petition. Other inmates have been held in limbo for months, even years, in gender-inappropriate prisons. Some have been placed in long-term segregation, with limited interaction with other prisoners and little purposeful activity. All face a real risk of harassment and victimisation. Further, transgender prisoners are considered an “at risk” group in terms of self-harm and suicide, as sadly evidenced by a number of self-inflicted deaths among transgender prisoners in recent years.

Transgender prisoners who have obtained legal recognition of their gender through a Gender Recognition Certificate (GRC) will “in most cases” be sent to a gender-appropriate prison, if that is their preference. As under the original policy, the only permitted exception is where the women’s estate is not equipped to house a transgender prisoner due to her risk profile, in which case, she will be treated as a woman in the male estate. The decision to house her in a men’s prison is, at least in theory, nothing to do with her transgender status. Rather, she may only be refused placement in a women’s prison if a cisgender woman with the same risk profile would also be held in the male estate. There are no circumstances in which a transgender man with a GRC can be refused allocation to the men’s estate, as the men’s estate is able to manage prisoners with any risk profile.

Those prisoners who do not have a GRC, however, will have to demonstrate “consistent evidence” of living in their gender in order to be considered for placement in a more gender-appropriate prison. Thus the revised policy does not adopt the self-determination model that many transgender advocates had hoped for. Nevertheless, clear and transparent guidelines now regulate the process for determining whether there is “full”, “strong”, “limited” or “counter” evidence of the person’s lived gender, which is an improvement on the previous policy. These guidelines explicitly envisage that there might be a small minority of prisoners who have insincere motivations for requesting to be housed in a prison that differs from the gender they were assigned at birth, such as gaining access to potential victims. However, again, there is no assumption that transgender prisoners represent such a risk. Cases potentially involving a significant risk of harm will be referred to a central “Complex Case Board”, but, as the policy reviewers rightly emphasise, “it is important that the policy for the majority should not be founded upon the highly complex considerations raised by the minority”.

The revised policy requires the new transgender case boards to take a “flexible approach to location”, but it is not clear how this will play out in practice. The same discretion was in fact technically available under the previous policy, but transgender offenders without a GRC were rarely placed in gender appropriate prisons. It remains to be seen whether the revised policy will herald a new, more adaptable, approach to prison allocation decisions, or whether there will be little change in practice. Although the revised policy emphasises the importance of striking a fair balance between prisoners’ needs, prisoners’ safety and prison security, it is increasingly apparent that our prisons are in crisis, with worrying levels of self-harm, suicide, violence and riots, in large part attributable to wave upon wave of budget cuts. The government promises “training, guidance and awareness materials” to help enforce this revised policy, as well as a Transgender Advisory Board to monitor implementation and good practice. However, with prisons short staffed and struggling to deliver on the basics of housing prisoners safely and securely, it is hard not to be sceptical as to how highly prisons will prioritise their equality and diversity duties, and whether they will be able to deliver on everything the revised policy promises.

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[…] which stipulates that prisons must recognise gender-fluid and non-binary inmates, and improves the procedures for making prison allocation decisions. Baker fears that security concerns will continue to trump […]